Friday, 25 September 2009

Aided and abetted by champions of parliamentary supremacy such as David Cameron and William Hague, President Vaclav Klaus defies the Czech parliament and government. His refusal compromises the EU’s Lisbon Treaty and the international credibility of the Czech Republic.

The Czech government together with the other member states of the European Union have promised Ireland and the rest of the members a Commissioner, if the Lisbon Treaty enters into force. The Irish voters hold the main key:

By voting Yes in the Lisbon II referendum, they assert their right to an Irish Commissioner.

President Klaus seems to want to weaken the Yes camp in Ireland, by refusing his long overdue signature on the Czech ratification instrument. If he succeeds by obstructing for another week and the Irish vote No, the Lisbon Treaty falls. Naturally, this is the preferred option for the anti-Europeans and the Europhobes.

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Yes, but ...

If Ireland joins its European partners by voting Yes on 2 October 2009, the problems caused by Vaclav Klaus are not completely over.

The European Union needs a new Commission, up and running, from 1 November 2009. If the Czechs are unable to sort out their constitutional mess, and President Klaus still refuses to budge, the European leaders are forced to look for alternative and perhaps temporary solutions, in order to put a new Commission in place, nearly in time. This is the burden of responsibility.

The European Council would have to initiate the appointment procedure under the existing Treaty of Nice.

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Nice Treaty Commission

Article 213 of the Treaty establishing the European Community (TEC) has been amended by the 2001 Protocol (No 10) on the enlargement of the European Union, as amended by the 2003 Act of Accession.

After the accession of Bulgaria and Romania (2007), which brought the membership of the European Union to 27, Article 4(2) of the Protocol offers us the contents of the amended Article 213(1), currently in force:

“2. When the Union consists of 27 Member States, Article 213(1) of the Treaty establishing the European Community and Article 126(1) of the Treaty establishing the European Atomic Energy Community shall be replaced by the following:

‘1. The Members of the Commission shall be chosen on the grounds of their general competence and their independence shall be beyond doubt.

The number of Members of the Commission shall be less than the number of Member States. The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously.

The number of Members of the Commission shall be set by the Council, acting unanimously.’.

This amendment shall apply as from the date on which the first Commission following the date of accession of the 27th Member State of the Union takes up its duties.

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Smaller Commission

The amended Treaty of Nice is unequivocal about the number of Commissioners: It must be less than the number of member states.

The intention of the member states was to agree on a rotation system, based on the principle of equality.

Article 4(3) of the Protocol offers us a view of how the member states wanted the rotation system to turn out:

“3. The Council, acting unanimously after signing the treaty of accession of the 27th Member State of the Union, shall adopt:

— the number of Members of the Commission,

— the implementing arrangements for a rotation system based on the principle of equality containing all the criteria and rules necessary for determining the composition of successive colleges automatically on the basis of the following principles:

(a) Member States shall be treated on a strictly equal footing as regards determination of the sequence of, and the time spent by, their nationals as Members of the Commission; consequently, the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one;

(b) subject to point (a), each successive college shall be so composed as to reflect satisfactorily the demographic and geographical range of all the Member States of the Union.”

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How?

Before the Council nominates the members of the Commission, it needs to take the unanimous decision on the modalities.

Various news reports have indicated that the EU member states, once convinced of the need for an effective college of Commissioners, have taken fright at the prospect of ever losing “their” Commissioner. Swedish Prime Minister Fredrik Reinfeldt and EU Minister Cecilia Malmström have acknowledged the “stage-fright” of the member states.

The EU members seem to be heading for a solution, which reduces the Commission by just one member. The country of the High Representative would have no member of the Commission (but it is possible to arrange for him or her to attend the meetings of the Commission).

The “26 + 1” solution certainly flies in the face of the original purpose of the treaty provision, and it is hard to square with the wording about a rotation system and the modalities envisioned, but practically the same intentions and words are contained in the Lisbon Treaty, which the member states were ready to evade in order to help the Irish.

The difference is that there is no escape from some reduction under the (amended) Nice Treaty, whereas the Lisbon Treaty offers the European Council the possibility to alter the number by a unanimous decision.

The Council and Commission legal services must have found sufficient interpretations in favour of this minimalist solution for the member states to discuss it earnestly, but I would not bet my life on the outcome in case of a legal challenge to an act by such a Commission.

I hope that the Swedish Council Presidency, if it has to manage such a minimalist solution, offers the public not only the bare bones decision, but the legal reasoning behind it, preferably beforehand to allow for public discussion.

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Irish Commissioner?

Apart from my lingering doubts about the legality of the “26 + 1” Commission under the Treaty of Nice, does this option have implications for Ireland and the Lisbon II referendum?

Between the entry into force of the Lisbon Treaty and 31 October 2014, the Commission shall consist of one national of each member state (including the President and the High Representative/Vice-President), so the guarantee to Ireland would take practical effect from 1 November 2014.

Until then, both the Lisbon Treaty and the possible “26 + 1” decision would (practically) safeguard a member of the Commission from each member state. (Cf. Article 17(4) and (5) TEU in the consolidated version of the Lisbon Treaty.)

From 2014 the situation might be different. For the “Irish guarantee” to be meaningful, it has to be intended to cover the situation from 1 November 2014. Under the Treaty of Nice, it is hard to imagine that the member states agree on anything but a stopgap measure to avoid institutional deadlock.

It is difficult to predict if the member states return to their original aim to ensure a more cohesive Commission. If enlargement of the European Union is allowed to continue (a big if under the Nice Treaty), the “26 + 1” solution would in effect turn into a “n – 1” formula (with n representing the number of member states, if each new member gets a Commissioner.

By each accession the Commission would then become even more like an assembly, instead of an executive body. By 2014 the member states may well be frustrated enough to take the leap.

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Anti-Europeans and Europhobes have been quick to trumpet the “meaningless” guarantee in order to weaken the Yes vote.

But – again – have they done their homework?

The Lisbon Treaty is a safer bet for an Irish Commissioner beyond 2014 (and possibly even in 2009).